any people view the JUDICIAL COMMISSION OF INQUIRY INTO ALLEGATIONS OF STATE CAPTURE, CORRUPTION AND FRAUD IN THE PUBLIC SECTOR INCLUDING ORGANS OF STATE (“the State Capture Commission” or “the Commission”) with suspicion, at best, and as a witch-hunt specifically for President Zuma’s associates, at worst.
But is this justified?
A cursory reading of the Commission’s Terms of Reference and Rules reveals that such suspicion can either be blunted or blown out into the open or completely disproved.
ANYONE, whatever his or her status in life, who believes that any person should be called as a witness on specific issues, and be questioned on those issues by the Commission, can ask the Commission Chair to call that person as a witness. All you need do is send a written request to the Secretary of the Commission in which you
- identify yourself
- identify the person/s you want called
- specify the issue/s on which you want the person/s questioned
- explain why that evidence is likely to be valuable to the Commission in the performance of its work
- link the issue/s on which you want the person/s questioned to at least one aspect of the Terms of Reference.
(The Terms of Reference – to which a link is provided below – have been amended since first being promulgated in January 2018, but not in a manner that materially affects the discussion here)
In this regard, Rule 9.1 of the Commission Rules says:
“If any person considers that a particular witness should be called to give oral evidence, a written request to this effect should be made to the Commission and shall include the reasons for the request and the likely value of the evidence of such witness. Such witness may be called at the discretion of the Chairperson.”
If the Commission Chair invites the person concerned, s/he must be questioned in terms of Rule 3.2 of the Commission Rules which says:
“A member of the Commission’s Legal Team may put questions to a witness whose evidence is presented to the Commission by the Commission’s Legal Team including questions aimed at assisting the Commission in assessing the truthfulness of the evidence of a witness. Subject to the directions of the Chairperson, the Commission’s Legal Team may ask leading questions.”
Since the primary purpose of a Commission of Inquiry is the pursuit of the truth, you are free to suggest a line of questioning to the Commission on the issues that trouble you. Ultimately, whether the person you have identified is invited to give evidence and be questioned at the Commission is for the Chair to decide. But the discretion of the Chair must be exercised judiciously, not on a whim.
If the Chair should refuse your request, you are entitled to reasons. If no reasons are given, or you find the reasons inadequate or irrational or unreasonable, you have a right to challenge the decision on review in the high court.
If the nature of the questioning should strike you as “sweetheart” questioning of the sort that is intended simply to go through the motions without any intention of extracting the truth, you have a right to challenge the process on review to the high court.
Now, the purpose of this brief opinion is this: it is unhelpful to stand on the sidelines hurling invective at the Commission when you can participate in making it a success. We live in what should be a participatory Democracy. PARTICIPATE.
Read an example of a Written Request by clicking on the link below: